Wallace Hamilton Browne, Esquire, having been created Baron Browne of Belmont, of Belmont in the County of Antrim, for life—Was, in his robes, introduced between the Lord Molyneaux of Killead and the Lord Rana.

Baroness McIntosh of Hudnall: My Lords, notwithstanding what my noble friend said about how funds are dispersed and made available for acquisitions, what can the Government do to encourage museums and galleries to acquire contemporary work—he has already touched on this point—particularly as many great artists are uncelebrated in their own time and require the support of loyal and courageous patrons to make sure that their work survives?

Lord Forsyth of Drumlean: My Lords, if the Government are prepared to forego tax revenue by introducing some scheme for tax relief, why do they not just simplify the whole process and make the revenue that they raise available for that purpose? Why do we have to use the tax system? If the Government believe that it is worth having some kind of tax relief, they must think that resources should be applied there, so why bring yet another complication into the tax system rather than doing what the noble Lord, Lord Sheldon, asked?

Lord Evans of Temple Guiting: My Lords, it should be encouraged, but, at the same time, no Government can count on the generosity of a young and brilliant artist in giving the country works. There have been many occasions when David Hockney has been wonderfully supportive in his time and his art—for example, in a campaign to get more need for regional museums. We must not take the help of such people for granted. They must be paid properly for what they do.

Lord Rodgers of Quarry Bank: My Lords, I should like to refer to the general debates and, in particular, to paragraphs 4 to 8 of the report. As the Chairman of Committees has said, since 1999 there has been a question about whether the general debate day should be switched from Wednesday to Thursday. On the first vote, there was no wish to see a change. In January 2001, a change was proposed, but, following a Division, there was no change. However, as the report shows, and the chairman reminds us, on 24 March 2005 the House voted to switch the debate day from Wednesday to Thursday for an experimental period.
	In moving an amendment last year, I said that switching government business from Thursday to Wednesday would effectively lead to a three- or even a two-and-a-half-day parliamentary week, and that in due course Thursdays would imperceptibly die. Eventually there would be poorer attendance at Questions and fewer speakers in general debates. There would be fewer Members in the corridors and lobbies, the Library, the Guest Room, the Bishops' Bar and dining rooms elsewhere. The House would be like a half-closed place of work, empty of life and flat. However, the processes of Parliament are complex and subtle. They are very different from the routine procedures and relationships in other institutions. Parliament is unique and special, and we should hold fast to its particular qualities.
	I said then, as I say now, that it is very convenient for busy Ministers to be largely free on Thursday. In the Division on 24 March last year, there was certainly a very full turnout of Ministers and Whips, led by the noble Baroness the Lord President, to vote for the switch. I also said then as I say now that it is convenient for government Back-Benchers, who are often bored stiff in helping to keep a House, to go home early at least after Questions on a Thursday. In March last year almost 100 government Back Benchers voted for change, more than sometimes vote in routine Divisions.
	The best case was put by the noble Baroness, Lady Lockwood, who said that the House prided itself on being representative, including its regional nature. For Members who live and work in the north, it would be very convenient to end the parliamentary week at the end of Wednesday. The noble Lord, Lord Gordon of Strathblane, explained eloquently the difficulties faced by Members coming from distant places.
	For the most part I believe that my own anxieties last year are justified. The House is usually dead by lunch time on Thursday. We used to hold party meetings on Thursday in preparation for the following week, but we now meet on Tuesday or Wednesday, so at best in the middle of the week. My view remains that Parliament is diminished when Ministers are largely free, except for a few summer weeks, from their appearance in this House. On my own criteria, I can find no evidence that the experiment has been a positive success, at least in strengthening Parliament and raising its standing. But I recognise that the tide is flowing against what was once the majority and my own view, so I reluctantly acquiesce in the sixth report.

Earl Ferrers: My Lords, the noble Lord, Lord Wedderburn, has a point; no reasons have been given. I agree with the noble, Lord Rodgers, but he is too tender about his views. He asked whether the change had strengthened Parliament and raised standards. It has not. The committee should be congratulated on coming to the conclusion that it did if the option was to continue with the experiment or to go back to what it was previously. The previous system was a disaster therefore the experiment, in so far as it is an improvement, is a good thing.
	When we had set-piece debates on a Wednesday, sandwiched between government business on Tuesdays and Thursdays, the House was always full and people took an interest in what was going on. Now people come in on Thursdays, and the House is well attended to start with, but by lunch time it is half empty and by three o'clock, as has been pointed out, the place is dead. It cannot be right that at three o'clock the only people left are those taking part in the debate.
	It was much better when the House sat at three o'clock on a Thursday. You had your party meetings before, the House sat at three o'clock and it was full. I know that one does not like going back on things, so perhaps the Lord Chairman could consider, in their next experiment, using the precedent used for the past 50 years which has worked extremely well. There is, I agree, one drawback: those who live in the north of England, Scotland, the Midlands and almost anywhere north of Shenfield find it disagreeable to spend a Thursday down in your Lordships' House. It is only a Thursday, not a Friday or Saturday. Ten years ago, your Lordships' expenses allowance, including night allowance and day attendance, was £107. Now it is £231.50 and we cannot be bothered to be here. I agree with the noble Lord, Lord Rodgers, that that is not strengthening Parliament. It is not doing Parliament any good or helping to hold the Government to account, if that is what we are supposed to do. I hope that when the noble Lord the Lord Chairman thinks of some new wheeze for the future, perhaps it will be to take the precedent which has worked extremely well.

Lord Brabazon of Tara: My Lords, perhaps it would be a good idea to bring this short debate to a close. I have heard a number of voices reflect the more traditional view on arrangements for Wednesdays and Thursdays. The Lord, Lord Rodgers, recognised that the tide had turned against the old Wednesday and Thursday arrangement; I hope that the noble Earl, Lord Ferrers, and others will also recognise that. I can see them not nodding but shaking their heads, but I am afraid that I have to tell them and the House that that is the way things seem to have gone.
	I mentioned some statistics that the noble Lord, Lord Wedderburn, did not like, but they showed that attendance and, more importantly, participation in debates, is little changed from Wednesdays to Thursdays—a point made by the noble Lord, Lord Peston.
	The three o'clock start, which the noble Lord, Lord Peston, raised, is an integral part of the Wednesday and Thursday experiment. It was called for because parties wished to arrange their party meetings on Wednesday afternoons between lunch time and the House sitting. The change, which was made in January, has been popular.
	The noble Lord, Lord Wedderburn, and others asked why the report was not more detailed. Again, it is the custom for Procedure Committee reports to concentrate on the recommendations made rather than on the discussions that took place. The minutes of the Procedure Committee have yet to be put on the website but they are available for all to see in the Library, where noble Lords will be able to see the arguments deployed.
	The noble Lords, Lord Trefgarne and Lord Peston, mentioned the balloting of Unstarred Questions. As the noble Lord, Lord Trefgarne, will know, because he was there, the Procedure Committee considered this but did not favour it. There are difficulties with having a ballot for an Unstarred Question, in that there is no fixed time for them.
	The noble Lord, Lord Trefgarne, asked about Questions that are at the top of the list when the person who has tabled them does not want to ask them, or where it is inconvenient to take up an available slot. The current situation is that a noble Lord in that position can turn down a slot but still be offered the next available one. There are those noble Lords who do not wish their Questions to be taken that quickly and who therefore do not press for a slot.
	I may have missed one or two questions, but I hope that that summarises the questions that I have been asked.

Lord Roberts of Conwy: My Lords, I begin by thanking the Government for accepting the thrust of our amendments on the composition and membership of the Assembly commission, Assembly committees and the title of the Audit Committee. These amendments were supported in the Division Lobby by substantial majorities of your Lordships and were clearly worthy of further consideration by the Government. We also had a new Welsh language clause, thanks mainly to the noble Lord, Lord Prys-Davies.
	I am happy to acknowledge the Secretary of State's rather negative but nevertheless welcome appreciation of our efforts when he said in the other place last Tuesday that he was,
	"not seeking to deny that there have been real improvements to the Bill as a result of debates and arguments in the Lords and the amendments that have been moved there".—[Official Report, Commons, 18/7/06; col. 192.]
	That is in contrast to the very tetchy, almost hysterical remarks about the Bill's prospects by the Secretary of State, which were surprisingly rather echoed in the Minister's opening speech.
	We can safely claim to have thrown some light on a few of the darker corners of the Bill and to have properly done our job of scrutinising it. Of course, we regret that the Government did not accept more of the amendments that your Lordships supported. One of them, which the noble Lord mentioned, preserved the dual candidacy system introduced by the Government in the Government of Wales Act 1998. That system has served Wales reasonably well in two Assembly elections. The prohibition of such candidacies under the present Bill has been roundly criticised by a string of authoritative bodies from the Electoral Commission to the Arbuthnott commission. Robert Hazell, the authoritative director of the constitution unit of University College London, described it as,
	"nasty, parochial and seemingly driven by partisan motives".
	The change is undoubtedly partisan in that it is an attempt to protect the interests of the sitting constituency Members against the rivalry of regional list members. It is not irrelevant that all Labour members of the Assembly are constituency members and none regional list members. Whether the prohibition will succeed in improperly protecting sitting constituency Members remains to be seen. What it will do, as Arbuthnott pointed out, is,
	"restrict voter choice and potentially diminish the quality of constituency contests".
	Political parties will have to find more candidates and this increase may affect quality.
	Nevertheless, the fact has to be faced that the political parties in Wales have already reconciled themselves to the requirements of this legislation even before its passage into law and are already appointing candidates to contest the Assembly election next May. There is therefore not much practical point in pursuing our amendment. However, we remain of the view that the Government were wrong to make the change that they have done for the reasons that they made it. It was not justified, except in terms of very dubious party political advantage. I do not propose to suggest to my colleagues on these Benches that we support the Government; I suggest that they abstain.

Lord Davies of Oldham: My Lords, I beg to move Motion B standing in the name of my noble friend Lord Evans of Temple Guiting that this House do not insist on its Amendment 4, to which the Commons have disagreed, but do agree with the Commons in their Amendment 4A in lieu. I shall also speak to Motion C.
	The amendments concern the composition of the Assembly Commission and Assembly committees in general. As a Government, we have always recognised that having a proper political balance is critical to the future working of the Assembly, as evidenced by the provisions in Clause 29, which I shall come to shortly. We do not contest the principle that the Assembly Commission should be made up of members from different political groups. Therefore, I am pleased to be able to respond to the call to enshrine this in the Bill by offering our amendment in lieu of Amendment No. 4.
	It provides that standing orders should require that, as far as is reasonably practicable, no two members of the commission should be drawn from the same political group. This does not include the presiding officer who will chair the Assembly Commission. The amendment simply clarifies the intended effect of your Lordships' amendment and provides for situations that may arise in the future when in theory there may be fewer than four political groups in the Assembly.
	Amendment No. 5 seeks to replace Clause 29 with a new requirement to ensure that Assembly committees have regard to party balance. The amendment shows that all sides of the House are in agreement on the key issue that committees of the new Assembly should be politically balanced. That has always been the Governmment's intention.
	As I stressed on Report, the amendment does not address the situation where agreement is not reached on the composition of committees. The aim is for the Assembly to reach agreement on the size and make-up of committees. The composition of committees should not be a matter of party-political contention, but should be the product of cross-party agreement. That is clearly the most desirable situation, and it is the one that obtains here and in the other place as a matter of course. We are familiar with that process. But the reality of the electoral system for the Assembly is such that there is a risk that that may not happen.
	That said, the Government recognise the concern that has been expressed in your Lordships' House and in the other place during the passage of the Bill; namely, that the provision in the Bill relating to the use of the d'Hondt formula should be explicitly worded as a fallback provision. One or two speeches were made against the entire concept, but I wish to emphasis again that the d'Hondt formula is merely a mathematical formula for resolving difficulties on the allocation of places.

Lord Thomas of Gresford: "If using the d'Hondt system is a fall-back, why do not the Government set out primarily that the numbers of a committee and its make up are to be determined by agreement, and that in the event of disagreement the formula is to apply? ".—[Official Report, 19/4/06; col. 1136.]
	The noble Lord, Lord Henley, speaking for the Official Opposition, expressed concern that Clause 29 as drafted required the Assembly to contract out rather than contract in to d'Hondt. He wanted greater emphasis on the use of the formula as a fallback. That is what this amendment delivers, and I believe that with this amendment, noble Lords will be reassured that that is expressly the intention.
	The other concern expressed during debates on this clause was that it disadvantages smaller parties and independent Members. In response, I point out that this amendment reinstates the provisions to ensure that independent Members and those belonging to smaller parties—I want to give that assurance to the noble Lord, Lord Elis-Thomas, who is in his place—are entitled to a place on a committee, subject to there being enough committee places to make that possible. We believe that that is crucial to safeguard the interests of independent Members and those who represent smaller political parties.
	I hope that in listening to both your Lordships' House and the other place, we have satisfied the concerns expressed while ensuring that the Bill gives direction as to what should happen in the event that parties within the Assembly fail to reach a consensus.
	There were two concerns. The first is what to do about smaller parties and how to recognise that with four main parties, very small committees raise problems. The d'Hondt formula works perfectly with a committee of 10 and the present composition of the Assembly. It provides exactly the right proportions between the parties. The difficulty would be if the Assembly set up smaller committees. However, the Assembly will be mindful that, like all parliamentary assemblies, it wants to guarantee that its committees properly and fairly reflect its composition.
	Secondly, there was rather more suspicion about the d'Hondt formula than was justified. It is merely a mathematical formula very widely used across the known democratic world to resolve the technical problem of how to produce fractions of a member and round them up into proper representation on a committee. The concern expressed was that the Government appeared to put such store by the d'Hondt formula that it was elevated to a significant principle in the Bill rather than being a mechanism for resolving difficulties. It is not a principle. I emphasise again that it is a fall-back position when agreement cannot be reached.
	I hope that noble Lords will recognise that our amendments resolve that position and meet the two main objections raised at previous stages.
	Moved, That this House do not insist on its Amendment 4 to which the Commons have disagreed, but do agree with the Commons in their Amendment 4A in lieu.—(Lord Davies of Oldham.)
	4.30 pm

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have spoken in this debate, particularly for the support from the two Front Benches and their recognition of the move that we have made in response to their arguments. However, I must insist again that d'Hondt was there as an aid, support and mechanism. It was never a principle for which this Government would die at the stake on these issues. The basis on which we expect to work is that the Assembly should be responsible for creating its own committees and composition by consensus.
	I am grateful to the noble Baroness, Lady Finlay, for her comments. She will know that we appreciated her contribution that d'Hondt should be only a fallback position. It is an odd concept to say, "I am so much in favour of a free vote that I will establish in legislation what parties should do". That is to misunderstand how parties organise themselves in Parliament. I cannot think how such legislation could ever be enforced on a political party, which is why we did not contemplate it. There are enough difficulties about free votes within a legislature without the law seeking to intrude and bring in an element of compulsion. Therefore, I do not accept that.
	I am grateful to the noble Lord, Lord Elis-Thomas, for indicating that progress has already been made on the Commission on the basis of representation, and for his understanding that we should bear in mind the need for a fallback position on the composition of committees. I am less enthusiastic about his concept of the independent Member, but I hear what he says about expecting more in Wales: we will just have to ensure that any seats are held by Labour.

Lord Evans of Temple Guiting: My Lords, I beg to move that the House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.
	I appreciate very much the acuity with which the noble Lord, Lord Kingsland, has scrutinised these and other provisions of the Bill. Our debates in this House and in another place have quite properly required the Government to explain and justify their proposals in detail. I note that Lords amendments recognise the principle that retrospective provision may be necessary in certain circumstances. I note also that the Shadow Attorney-General in another place said on 20 July at col. 220 that he fully accepted that this provision was intended to rectify technical omissions. We are talking about provisions that would be used only on rare occasions. Concerns were expressed in another place that if any individual's rights should be affected, they should be guaranteed redress. These concerns are important and I recognise that noble Lords opposite have quite properly pressed further and further on a point on which they wanted reassurance; I hope that I can give that reassurance.
	These constrained powers to make retrospective provision will enable technical points to be dealt with which protect the position of a person who acted in good faith on Assembly legislation only to find that there was some doubt over whether that legislation was within the Assembly's legislative competence. The power in Clause 94 would allow the Assembly's legislative competence to be corrected retrospectively should that prove necessary to give proper effect to the intention of Parliament in granting that competence in the first place, and when not to do so would leave the law unclear or could be detrimental to third parties.
	Noble Lords rightly asked about cases where it might be to the detriment rather than the benefit of third parties to correct the law retrospectively. What if a court had already decided in their favour? I have confirmed in a letter now available in the Library, in response to points raised on Report by the noble Lord, Lord Kingsland, that the Government would not seek to use these powers to undermine court proceedings where the vires of an Assembly measure was at issue. I am happy to add that the Government would not make an order that retrospectively altered a court's decision and that if any future Government should seek to do so, clearly Parliament could be expected to block it. The Government could not alter the fact that the court had taken a particular view on the vires of an Assembly measure but they might need to take action in consequence of a court's decision. It is not possible to predict what that action would be, but one cannot rule out the need to include retrospective provision.
	In another place, the shadow Attorney-General asked for,
	"a clarifying statement to make it absolutely clear that if it is established that private legal rights are effective retrospectively in any way, the person affected will be entitled to redress".—[Official Report, Commons, 18/7/06; col. 221.]
	That has to be right in principle. I find it hard, though, to imagine circumstances where that might become an issue given that the purpose of these provisions is, as I have said, to deal with technical points and to ensure that persons who acted in good faith on the basis of Assembly legislation are not disadvantaged if it is subsequently found to be ultra vires.
	However, I can offer reassurance in this sense: any Assembly measure would have to treat private legal rights fairly in the first place. If it did not, and therefore was not compatible with the European Convention on Human Rights, it would not be law and no amount of retrospective provision under the Bill could make it law. If, however, the measure treated those rights fairly and it was only a technicality which meant that some provision in it was ultra vires, then to remedy the technicality would simply restore what was intended to be the status quo. Any persons affected by provisions in the measure would continue, therefore, to be entitled to the compensation or other redress provided for in the measure itself.
	I would expect any Government to weigh these issues very carefully and to satisfy themselves that no person's rights would be affected without proper redress if retrospective provision was made. If they did not, of course, Parliament could block the proposal, as I have said before. Ultimately it would be for the courts to establish whether an individual was legally entitled to redress or greater redress than already offered, and it is proper that the court should be the ultimate arbiter in those circumstances.
	In the light of the reasons I have given, I hope noble Lords opposite will accept the Government's view that these amendments should not stand. I beg to move.
	Moved, That this House do not insist on its Amendments Nos. 17, 21 and 22, to which the Commons have disagreed for their reasons numbered 17A, 21A and 22A.—(Lord Evans of Temple Guiting.)

Lord Kingsland: My Lords, the charm and diplomacy of the Minister is greatly appreciated; but, I fear, as far as I am concerned, to no avail. I do not find his reassurances sufficiently reassuring. It may be intended that the clause should deal with technical points; but the consequence for the private individual of dealing with those technical points continues to worry the Opposition.
	Our constitution abhors retrospection. When a citizen's private rights are breached and he is damaged as a result, he is invariably entitled to redress. Retrospective powers enable the Government to abandon that principle. That is why we challenged Clause 94(4) on Committee and Report.
	At Third Reading we offered the Government an olive branch. We suggested that retrospective powers would be acceptable as long as such powers were not exercised,
	"to the detriment of those who have either benefited from or acted in reliance upon the state of the law before the retrospective Order is made".—[Official Report, 13/7/06; col. 840.]
	To this proposal we have received an ominously evasive response—first from Ministers in this House and then from the honourable Member Mr Ainger in another place, who said:
	"There could be public interest considerations in favour of making retrospective provision. It is not right that the Government should be prevented from taking the public interest into account in making legislation".—[Official Report, Commons, 18/7/07; cols. 218-19.]
	I cannot decide whether that is a profoundly ingenuous or profoundly disingenuous remark. In either case, such a proposition should never be allowed to justify retrospection. Of course the public interest should play a part in deciding what the law should be in the future; but it has no part to play in determining the application of existing private rights. That kind of thinking engendered the Acts of indemnity so beloved of Tudor and Stuart monarchs.
	Mr Ainger claimed that there remained the protections of the Human Rights Act and of our own parliamentary procedures. However, in continental jurisprudence, the rule against retrospection is much less well-entrenched than in our own common law. Despite the Human Rights Act, for example, the Government were perfectly happy to claim the other day that the Compensation Bill conformed with the convention even though it contained a clause that is plainly retrospective. That is an example of the Human Rights Act undermining the traditional protections of common law.
	As to the protection of Parliament, at least the Burma Oil legislation in 1965 had to go through the full legislative procedures of both Houses. In this case, there would be a single vote on an unamendable draft order after derisory debate.
	From the evasiveness of the Government responses, I can only conclude that they do indeed intend on occasions to alter existing private rights retrospectively and in circumstances where those who lose out as a result will suffer. I remain astonished that they should subscribe to something so meretricious. I beg to move.
	Moved, as an amendment to the Motion, leave out from "House" to end and insert "do insist on its Amendments 17, 21 and 22".—(Lord Kingsland.)

Lord Davies of Oldham: My Lords, I beg to move Motion F standing in the name of my noble friend Lord Evans of Temple Guiting, that the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.
	The House will appreciate that the amendment seeks to remove the Secretary of State's discretion over whether and when to lay a draft referendum Order in Council before Parliament if the Assembly passed such a request on a two-thirds vote. The purpose of Clause 103 is to ensure that the Secretary of State responds to a request from the Assembly within a proper timescale. It is right that such a request cannot simply be sat upon, but the amendment would compel the Secretary of State to lay a draft order before Parliament within 120 days.
	We had intensive debate on this matter at Third Reading, and I recognise the concerns that have been expressed by noble Lords—principally that a hostile Secretary of State should not be able to frustrate or obstruct the will of the democratically elected Assembly, particularly when it had passed the measure on a two-thirds majority. This concern was expressed by the noble Lords, Lord Livsey and Lord Thomas of Gresford, in that debate. I recognise that this is a point of principle for the Liberal Democrats. However, I genuinely believe that the Bill as originally drafted meets their concerns and serves the cause of the Assembly better than the amendment proposed by the Official Opposition.
	I repeat what I said at Third Reading. Any governing party in London that sought to block a decision by two-thirds of Assembly Members in Cardiff would pay a heavy political penalty. If a Secretary of State were wilfully to attempt to thwart the clear will of the elected representatives of the people of Wales, after a referendum request had been given full and detailed consideration by the Assembly, and approved by two-thirds or more of Assembly Members, the consequences would be grave, both politically and constitutionally.
	In the event of a hostile Secretary of State being foolish enough to block a referendum—that was the concept envisaged by noble Lords when expressing anxiety about this—the amendment, as I said, would do nothing to restrain him. In such circumstances, he would simply have the referendum order thrown out in a whipped vote in the House of Commons. The referendum could not be a defence against a Secretary of State determined to pursue such a wilful cause.
	The most effective check on such recklessness is not constitutional but political. A referendum request approved by two-thirds of Assembly Members would have the momentum to carry it forward. It cannot be conceived that a Secretary of State would risk political annihilation in Wales in the face of such a broad consensus. I know noble Lords on the Liberal Democrat Benches said that it might not always be a Secretary of State from my party, with its broad sympathy for the ambitions of the people of Wales, and that a Conservative Secretary of State might think differently, but I do not think political reality could envisage such a cause.
	I shall respond to the points raised in the debate we had at Third Reading, and in the other place, when we considered this issue. The Order in Council process is a mechanism to bring about the referendum. If an order is to be laid before Parliament, that is properly for a Minister of the Crown. The Assembly cannot lay the order; neither would it be constitutionally appropriate for the Assembly to be able to force the Secretary of State to lay the order before Parliament. The clear line of constitutional accountability that we are seeking to preserve in this Bill is that the Secretary of State, as a member of Her Majesty's Government, is accountable to Parliament, not to the Assembly. It is just not appropriate, as I think is being sought on the Opposition Benches, for a Minister who is accountable to one legislature to be instructed to do something by another.
	I repeat what I said for the Government at Third Reading: our objection to this amendment is not that we wish to aggrandise the role of the Secretary of State. Indeed, I do not see a real difference of principle between the concerns expressed by the Liberal democrats and our position. The Government's objection to the amendment is that we do not think it is constitutionally appropriate. I ask noble Lords opposite to consider the significance of that.
	There are also, at a much lower order of consideration, practical reasons why the Secretary of State should not be constrained to lay a draft order within 120 days. In the event of there being an unsympathetic UK Government, the order would certainly not at that stage have been agreed. What if the Assembly were not happy with the content of the draft order that was produced? The clock would start ticking, and there would be no way of stopping it to allow further time for negotiations before the draft itself had been laid.
	In summary, the Government reject the amendment because we have a clear constitutional process to follow, which the amendment would distort. There are, in addition, practical considerations to take account of, and, fundamentally, if the collision were such that the Government in the United Kingdom objected to the referendum of the people of Wales passed by two-thirds of the Assembly, there would be high politics at play, with serious consequences for a Government that pursued such a course. Any attempt to obstruct the process, after a referendum request had been approved by the Assembly, would provoke a constitutional storm. It is not possible to envisage a Secretary of State opting to act in such circumstances. If he were bent upon such a course, he could take other action to frustrate the will of the National Assembly. This amendment would not be beneficial, which is why I hope that the House will support the Government's position. I beg to move.
	Moved, That the House do not insist on its Amendment No. 18, to which the Commons have disagreed for their reason numbered 18A.—(Lord Davies of Oldham.)

Lord Roberts of Conwy: My Lords, given all the circumstances that the Minister has outlined, one is tempted simply to ask him why on earth the Secretary of State hangs on to this power. I listened very carefully to the Secretary of State's rejection of the amendment in the other place last week, and I have listened to the noble Lord's remarks today. Frankly, I am not convinced that the Secretary of State's alternative role of blocking an Assembly resolution asking for a referendum, backed by a two-thirds majority of the seats, instead of laying an order before Parliament to authorise the holding of a referendum is remotely justifiable.
	The Government's view is that the Secretary of State cannot be compelled in this regard. The Secretary of State has said that and we have heard it again today. The relevant remarks of the Secretary of State are recorded at col. 232 of Commons' Hansard of 18 July. He argued that he could not be compelled to act by the Assembly. However, he is not being compelled to act by the Assembly but by this legislation, passed by this Parliament. Clause 103(3) states that the "Secretary of State must"—I emphasise the word "must"— "within ... 120 days" of being told of the resolution by the First Minister,
	"(a) lay a draft of a statutory instrument containing an Order ... or
	(b) give notice in writing to the First Minister of [his] refusal to do so".
	We have heard Ministers argue that the Secretary of State must have time to prepare the statutory instrument and to consult, but time is provided by the clause, which was drawn up by Ministers. They specified 120 days.
	As I made clear at Third Reading, the purpose of our amendment was to eliminate the Secretary of State's right of refusal to lay an order—a refusal that would also deprive Parliament of the opportunity to express its wishes in response to the Assembly's call for a referendum. Again, I ask why on earth he needs this power. I am still convinced that it is wholly wrong to allow the Secretary of State to thwart the Assembly's will and as a result to deprive Parliament of its rightful opportunity to express its wishes regarding a referendum. The Government have failed to justify this power, but we have to view it in context, and that context is probably one in which a referendum is a very remote possibility indeed.
	The fact that the referendum to bring in Part 4 is currently out of political range means that the Bill is heavily dependent on the complex, gradualist mechanism of Part 3, which even the noble Lord, Lord Richard, finds complex. We have made clear that we believe that Part 3 is seriously flawed. It is one of the reasons why I believe that the Bill will not provide a lasting settlement.
	I hope that those who attend the Secretary of State's reception in Cardiff tomorrow to celebrate a "new dawn of devolution", as he describes the Bill, are not befogged by the hype and remember the Explanatory Notes' modest description at paragraph 309 on page 62 that,
	"with minor exceptions ... the Bill does not itself confer additional legislative powers on the Assembly; rather, it provides a mechanism whereby such powers can be conferred on a case by case basis as appropriate, with Parliamentary consent".
	That is what the Government's own Explanatory Notes say. That is the true extent of the enhanced powers granted to the Assembly. The real enhancement is in the power of Ministers, including the Secretary of State.
	I thank the Ministers who have dealt with our debates, over seven days in all on the Floor of the House. I also thank the Bill team who have supported them, and all who have participated in shaping this legislation. I shall not be pressing my colleagues to vote against the Government on the Motion.

Lord Livsey of Talgarth: My Lords, I believe that contained in Motion F is the recipe for some conflict in the future. Those of us who soldiered on, for example in the 1979 referendum on whether there should be a Welsh Assembly, can conceive of any kind of outcome that could occur. Although the Minister pleads sweet reason to us—and I accept what he said, because he said it in good faith—there is no doubt that a whole series of circumstances could come along to dog Wales yet again on getting the kind of powers that it needs to rule the country with resolution and intelligence and to release the energies of the Welsh people.
	Even though the Assembly has voted by two-thirds in favour of an Order in Council to hold a referendum, the Secretary of State can intervene. As the Minister said, there may be a hostile Secretary of State who might be inclined to deny the opportunity in spite of a two-thirds vote. We must ask, certainly in constitutional affairs and constitutional reform: which Secretary of State? Who is to say that the shelf life of a Secretary of State for Wales will be a very long time? Given that more powers are being transferred to Wales—I hope not until there are full primary legislative powers for Wales—there could be a situation where "the Secretary of State" would not be the Secretary of State for Wales but would be the Secretary of State for Constitutional Affairs. The Bill is so phrased that a Secretary of State for Constitutional Affairs might have a radically different view of whether the referendum should go through an Order in Council and be accepted. The Bill says that he or she has the right to refuse it; you only have to look at Clause 104(3)(b) to see that staring you in the face.
	We have made quite a lot of progress with the Bill in the way that Wales is eventually creeping to democracy. We have a long way to go, but this is undoubtedly some progress. There are a lot of convoluted problems with the Bill, which is why, as the noble Lord, Lord Richard, said, it is only worthy of a B-plus. I sincerely hope that we will end up with a proper constitutional settlement for the whole of the United Kingdom; a federal constitution where the powers lie where they should do. The Richard Commission report had a good go at that by saying where the powers should lie in what would be a Welsh Parliament or Welsh Assembly with primary legislative powers. The issue about where the appropriate powers should lie has to be sorted out one day. We should not really have this long march around all these bends, corners and obstacles to get there.
	There is no doubt that there has been good will on all sides. I thank the Conservative Front Bench, whom we worked with closely on many of the amendments. Some of the things that we wanted have been achieved. I thank the Minister for that, and the Bill team who have worked extremely hard. I also thank the Presiding Officer of the National Assembly—the noble Lord, Lord Elis-Thomas—who put his case today far more eloquently than I did, although I attempted to do it despite what the noble Lord, Lord Anderson, said earlier. There has been lot of co-operation.
	The Bill will do as a constructive stop-gap to give more power to Wales. Let us hope that Wales will get the proper legislation that it deserves not too long in the future.

Lord Elis-Thomas: My Lords, I hate to disagree with my spokesperson in this House over the past few months, but this is much more than a legislative stop-gap. I do not want to excite the noble Lord, Lord Roberts of Conwy, but the Bill lays on the statute book all that is necessary for the proper governance of Wales in the 21st century. That is a significant step forward.
	There has been a lot of imaginative constitutional talk in this debate. Could we ever conceive of a situation in which a Secretary of State of the United Kingdom Government would take a certain view about a potential referendum in Wales without there having been full consultation, even before the Assembly adopted a resolution requesting a debate? Surely we will not have a political party in power in the United Kingdom Government that is not represented in the National Assembly. Unless some English nationalist party appears, I cannot imagine such a thing; some would argue that we have one already on the Benches opposite, but I shall not go into that contentious area.
	This is a constitutional convention. Any resistance by a Secretary of State would be more likely to bring about the demise of the great historic office held with such distinction by the noble Lord, Lord Crickhowell, and others in this House. The Secretary of State is a constitutional invention in terms of the Bill. We are in the conventions of the quasi-federalism that we are struggling towards within the United Kingdom, on which I agree with my noble friend Lord Livsey. Therefore, I welcome the Bill and the Motion.
	I join in the congratulations to officials, who are mainly officials of the National Assembly—or the Welsh Assembly Government, as we will have to learn to say—as well as of the Wales Office. They have served us well in drafting the legislation. I am especially grateful to the noble Lord, Lord Crickhowell, for his kind expression of good wishes for the future of the Assembly and for what it may or may not do. In fairness, I am sure that his party has played a great role in the development of the Assembly. We have had consensus about important areas, especially the separation of powers which are not covered by the amendments, so I shall not go into them. To me as Presiding Officer through a difficult period in the first two Assemblies, the separation between the Executive and legislature is the clearest signal that what we have here is proper parliamentary democracy.

Lord Davies of Oldham: My Lords, I am grateful to the three noble Lords who have spoken. Once again I marvel at the ability of all Members of the House to be able to translate relatively minor amendments into significant constitutional principles. As the noble Lord indicated, that has kept us on our feet for seven days during the passage of the Bill. I had hoped for a little rest on the seventh day, but we do not seem to be getting any due to the scrutiny of Members on the other side of the House.
	This is a fairly minor amendment. It is about laying the order within 120 days. I emphasise that it does not make any material difference. If the United Kingdom Government of the day did not support the order passed by the Assembly with a two-thirds majority, they would be into high politics. If we passed this amendment, a Government would find other processes to thwart a referendum called, because they would clearly be taking a position of substantial opposition to the declared will of the majority of the people of Wales.
	The Bill as drafted tries to take the point into account by quite properly forcing the Secretary of State, who is answerable to the United Kingdom Parliament, to face up to the demand for a referendum. In the unlikely event of a Secretary of State refusing to lay the referendum order, he would have to explain his reasons for doing so and would be publicly accountable for those reasons. That would be the basis of the political decision-taking that would result from such a crisis—because it would be a crisis. In such circumstances, this amendment would be immaterial to the decisions of government.
	I am grateful for noble Lords' constructive work on the Bill. We have laboured long and hard in the vineyard and it is good to see the results. I am grateful to the noble Lord, Lord Roberts, who said that the Bill had its merits—although in a rather minor key. He did, however, express a broad commitment to the development of devolution, which we welcome in the main opposition party. He has had rather more enthusiastic support from some of his Back Benches, and we have noted that, too. That augurs well for further progress.
	I also recognise that the Liberal Democrat Party is committed to devolution and regrets that the Bill does not go far enough. However, the noble Lord, Lord Elis-Thomas, with his responsible role as Presiding Officer of the Assembly, accurately expressed the position—namely, that the Bill opens up the process of enhanced powers for the National Assembly, of which it can avail itself through judicious consideration of Orders in Council.
	The Bill marks a significant step in the eventual transition of the National Assembly from its present role to that of a much more enhanced Assembly with fuller devolution powers. The Bill deserves support in those terms. It certainly does not deserve to be frustrated by this rather minor amendment at this stage. I therefore hope that the House will support the government Motion.

Baroness Morris of Bolton: My Lords, I am most grateful to the Minister for repeating the Statement made by his right honourable friend the Secretary of State for Work and Pensions in the other place.
	I could not agree more with the sentiment that parents, regardless of whether they live together, have a moral as well as a legal responsibility to support their children. We can also agree that no one is happy with the chaotic way in which the CSA has performed the task of getting money from absent parents to the parent with care. Chaotic it is: 267,000 new cases and 66,000 old cases are still waiting to be sorted out and 25 per cent of the cases received since March 2003 are waiting for clearance. Clearance itself takes a ridiculous three weeks to achieve and, when that is over, as the recent National Audit Office report showed, more than half of those are wrong. It is no wonder that it costs the agency 70p for every £1 that it collects and that there is an estimated £3.5 billion of outstanding maintenance to be collected. It is this fact that is the real scandal and where every effort should be directed. Yet, for the 1.5 million families trapped in the old system, today's announcement will be a big disappointment.
	There are two main reasons why the present system does not work—and unless we understand what has happened, we run the risk of repeating mistakes. The first reason is the difficulty in finding the absent parent. I understand that the Government are looking at addressing that in their efforts to get joint registration of birth certificates, but that is a serious problem with existing families. It should not be beyond the wit of man to use all the references, such as the electoral list or state pension records, to find the father—for it is usually the father.
	The second difficulty is, once found, that of assessing the income of the absent parent, who may be in irregular employment. However, the real problem here is that the agency tries to assess their current income. That relies to a large extent on the honesty of the individual. The problem does not occur with the self-employed, who are assessed on the previous year's income. Why cannot everyone be assessed in that way? It would be easy enough to ascertain through the individual's income tax form, which, by law, every employer has to give to his employee. If, during the year, the income went up, the payments would automatically be processed the following year. If, however, the income was lower, the absentee parent would have to provide evidence in the way of wage slips for the assessment to be adjusted downwards. No doubt some hard cases would appear but they would fade into total insignificance beside the 333,000 parents with care whose children are facing hardship right now.
	There is no reason to suppose that the new agency will be any more successful than the old one if it is constantly struggling to establish an accurate basis of assessment. Although we had understood that Sir David was looking at this in his redesign of the system, there was no recognition in today's Statement of the importance of this fundamental issue to a robust system of child maintenance.
	On the subject of parents on benefit keeping more of the maintenance owed to them, can the Minister give an indication of the level of disregard being contemplated? Can he tell us whether any research has been undertaken on whether the level of disregard could prove to be a disincentive for some struggling families to stay together?
	We share the view of promoting greater personal responsibility, where parents reach their own arrangements and the state becomes the last resort. Yet we all know that that is not always so neatly delivered in the real world—hence, the birth of the CSA in the first place. Can the Minister say what advice will be given to parents who wish to sort things out as amicably as possible?
	Noble Lords will know from our debates on the Children and Adoption Bill—I am looking at the noble Baroness, Lady Pitkeathley—that we on these Benches believe strongly in the presumption of co-parenting. A child has a right to reasonable contact with both parents if their relationship breaks down, and that provides emotional and financial stability. David Levy, president of the United States Children's Rights Council, says that the benefits of shared parenting were apparent not just in fewer costly disputes going to court but in increased child support payments. Consensus Bureau statistics showed that fathers with shared parenting rights paid twice the amount of fathers with no contact. I do not for one minute argue that payment should follow contact but it is clear that, in the best interests of the child, the state should do all it can to facilitate contact. Will this issue be part of the consultation?
	We are told that Sir David would like a clean break with the past—a fresh start with a new organisation. I should think that that is exactly what the parents caught in the present system long for, especially as it will bring huge financial benefit. Yet they will not automatically transfer to the new system. Parents wishing to use the new system will have to reapply. If all parents in the old system reapply, will the new system be able to cope or will the service be rationed? If there is to be a service charge, will it apply to parents from the old system, even if that system let them and their children down?
	We shall follow the consultations with interest, but no redesign will work unless we address the fundamental flaws, learn the lessons of the past 13 years and act on them. No rebranding will work unless there is a real change in the arrangements of the families involved. Without that change, the Government will continue to let down hundreds of thousands of lone parents and limit their children's potential to have the best start in life.

Lord Oakeshott of Seagrove Bay: My Lords, I, too, thank the Minister for reading the Statement made in the other place. I also thank him for the courtesy of a telephone call this morning in which he outlined the principal findings of the report. However—I think this point should be made—it is ridiculous that substantial reports of the type produced by Sir David Henshaw, and, indeed, the Statement, are not made available to Front Bench spokesmen, at least in the morning, so that people have a few hours to study them. There is no possible question of market sensitivity or anything else in this case. I think that that would be a basic improvement to democracy in this country and I cannot see what it would cost.
	"Thirteen wasted years". Those who, like me, have relatively long political memories will recall that that was the slogan with which Harold Wilson swept the discredited 1964 Douglas-Home Tory Government out of office. It is a horrible irony that 13 wasted years is what the lone parents and their children have had to endure in this country under both Governments. The Statement says:
	"I do not ... believe the continuing problems are a failing of the staff of the agency, but rather the policy framework and the system they are being asked to run".
	Does the Minister accept that, in plain English, those weasel words really mean that there has been management failure at the very top by Ministers and top civil servants and that the dither and delay that we have seen over many years has contributed substantially to that?
	On Sir David's report, my view is that it is fine as far as it goes. It is strong on analysis but not very strong on prescription and on what has to be done now. I am bound to say that it reads more like a report from someone with a public-sector rather than a business background. My heart sank when I read that we are now to have a further consultation—indeed, a report—from him on the ways to implement it. How many reports, redesigns and consultations do we have to have before decisions are taken and we move on?
	On Sir David's specific proposals, I agree with the suggestion that parents should keep more of the maintenance owed to them. It is important to maintain the principle that the parent who has moved away should still contribute as far as possible. If there is a disregard, I believe that it should be at a high level with as much personal responsibility as possible.
	So far as concerns enforcement, of course these arrangements need to be enforced properly. We are happy to consider new powers but, as always with Blairite initiatives, one must ask whether the existing powers are being properly used. The agency already has powers to remove driving licences, but just 11 were removed in the five years up to 2005. That seems to me to be quite an effective power. If the Government are to bring in any new powers, they should ensure that they are used.
	There must also be concern about how morale is to be maintained in the rump CSA, if I can call it that—or residuary body or whatever—which inevitably for some time to come will have to carry on dealing with the existing cases. Morale must be bad enough already. Will Mr Geraghty remain as chief executive of whatever the agency now is, and what steps will be taken to ensure that those cases are progressed?
	Specifically, what will happen to existing cases in the system? It would be heartbreaking for families who are well through the system to be told that they have to go back and start all over again. We must know the answer to that. It is the sort of thing that the Government and the Minister should have thought about. It is no good just to say that we are to have a few more months' consultation. That is totally unsatisfactory—the issue needs to be faced up to.
	The key question relates to existing cases and existing debt. There are a third of a million cases and £3.5 billion of arrears, each case averaging £10,000. What is going to happen? I listened carefully to the Minister but I heard no answer to that. It is not satisfactory to say that it will be a matter for consultation. It should be a matter for the Government to decide. These are good ideas but action is painfully slow. We must move very rapidly to action and not consultation.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness, Lady Morris, and the noble Lord, Lord Oakeshott, for their comments. I think that I detected some support for some of the principles proposed but I had to work hard to do that. In general, I hope that there will be an opportunity for some constructive debate around the current consultation and the White Paper that will come later in the autumn.
	I fully agree with the noble Baroness, Lady Morris, on the moral and legal responsibility of parents to their children. Sadly, the experience of the past 13 years has been that too many parents have sought to evade their responsibilities. That is part of the problem that the agency has had right from the start. There have been signs of improvement in the performance of the CSA in the past year or so, which I shall come to later, but clearly, taken as a whole, the CSA was not delivering what was required of it—hence the need for the Henshaw redesign and the Government's decisions on the general intent of the way forward, and hence the need for further work in certain areas. Noble Lords have mentioned a number of those areas and I shall come to them.
	The noble Baroness, Lady Morris, said that there are two reasons why the CSA is not currently working: the first is the problem of finding absent parents, and the second is the problem of assessing income. She then referred to the need for the agency to assess current income. She will know that there is a requirement to do that frequently if there are changes in income. There is no question but that, as part of the next phase of work in the redesign of the child support system, we will need to look carefully at how to make the system somewhat more streamlined. If she has had a chance to go through Sir David Henshaw's report, she will know that paragraphs 123 to 126 refer to some of the discussions on the role of her Majesty's Revenue and Customs. Sir David suggests that greater co-operation between the CSA and HMRC may be one way of providing further information which can be used. But that is clearly work that we need to take forward.
	On the question of tracing absent parents, I agree with the noble Baroness. Under regulations that we passed in this House just a short time ago, the agency already has the power to contract private companies for tracing services. That is part of the new processes which the agency is currently undertaking to improve its ability to track down absent non-resident parents. The report refers to the question of birth registration and the desirability of registering fathers at the child's birth. We will consider that matter in the consultation period.
	The noble Baroness asked about the level of maintenance disregard. I cannot give her that information now as we need to do further work on it. As the Statement said, however, the increase will be significant. She also asked about experience in other countries and whether such arrangements were likely to provide reverse incentives in family break-ups. I suppose that there is a theoretical possibility, though little empirical evidence to suggest, that that would happen. We are, after all, talking about relatively small sums, and many events and factors play a part in people's decision to separate. I would also say that in many cases there are additional costs to those who separate and leave the family home. So we do not believe that this will turn out to be a particularly major problem.
	I very much agreed with the noble Baroness's comments on the contact issue. She was right to refer to the Children and Adoption Bill and to the potential for ensuring that contact orders are both made and well enforced. I am sure she is right to say that we cannot link child support payments to contact, as such a dispute is between the two parents and the person who would suffer is the child who does not receive the flow of money. However, I think that contact is very important. The noble Baroness asked what kind of advice we would want to give parents to encourage them to try to resolve some of these issues themselves. We will be establishing a group across government to consider that, because clearly a holistic, integrated approach in dealing with all matters to do with separation would be very beneficial.
	The noble Baroness and the noble Lord, Lord Oakeshott, raised questions about a clean break, how that would apply, and what would happen to the current caseload. Sir David Henshaw's view is that one of the major organisational problems in the history of the CSA—at the beginning, in 1993, and in 2003—was the transferral of cases on to a new system, which has proven extremely problematic, as noble Lords will know. In order to make the new arrangements work effectively, Sir David believes that the new organisation has to start with a clean sheet, and that it will be a major problem if it is contaminated by the existing caseload. He therefore suggests that a residuary body deal with the existing caseload, to reach a situation where parents on the existing system are given an option of discontinuing and going private, as they will be able to resolve issues and carry on satisfactorily, or of going on to the new system as new applicants. We want to consult to see whether that is the right approach. Clearly, if money is flowing satisfactorily from one non-resident parent to the parent with care, the last thing we would want is to disrupt those arrangements.
	I have answered one or two points raised by the noble Lord, Lord Oakeshott. On reports to the Front Bench, I have always tried to do my best to give as much advance warning as possible, and I shall continue to do so. The noble Lord talked about the 13 wasted years. There is no question but that the problems of the CSA, which have continued over 13 years, have been very difficult indeed for many parents caught up in the system. The fair answer to the noble Lord's question is that we have tried our level best to get the current system to work properly. I pay tribute to my noble friend Lady Hollis, who did a sterling job in her stewardship of those matters. However, as Sir David Henshaw said, it is not simply a matter of an administrative or operational problem. There have been many systematic failures, such as the fact that the parent with care on benefits is forced into the system; that incentives to compliance are very low; and that too many non-resident parents do everything they can to evade their responsibility. Unless one considers those matters in the round, one will never get a satisfactory child support system. That is the whole purpose and point of having a higher benefit disregard, ending compulsion and doing everything we can to encourage parents to act as responsibly as possible, while ensuring that if it does not work, there is an organisation to which parents can turn that will be efficient and tough on enforcement.
	The noble Lord, Lord Oakeshott, asked about enforcement and welcomed the prospect of new powers, though he also asked whether the agency is using the powers that it has. The answer must be no—historically, the agency did not use its powers to fullest effect. But that is changing. Last year, 15 people served custodial sentences for matters to do with child support, and the number of liability orders has increased considerably. There are good indications that the agency is prepared to use enforcement more enthusiastically. We want that to continue while we are looking at other measures that could be taken.
	The noble Lord, Lord Oakeshott, also asked about morale in the Child Support Agency, and he is right to do so. Child support law is in operation. Many cases are going through the CSA system, and it is important that they continue to go through. We have agreed to the operation of an improvement plan, which will continue. We will do everything we can to see that the CSA improves its current performance as we move to the new arrangements. The question of leadership of the future organisations is a matter on which we shall have to decide in due course, but I pay tribute to Mr Stephen Geraghty, chief executive of the CSA, who has now been in post for a little more than a year. He is doing an excellent job and has pulled together a very good executive team. Again, I pay tribute to the work of my noble friend Lady Hollis in enabling that to happen.
	Sir David Henshaw's report refers to debt as a matter requiring close attention, and indeed it does require attention. However, I remind the noble Lord, Lord Oakeshott, that we passed an order only a few weeks ago that allows the agency to contract out some of the debt collection, and the move is already showing signs of positive results. The first lot of letters warning customers that debt collectors may soon be coming round to knock on their door has produced a positive response and resulted in money being paid up. We are keen to chase down what debt we can.

Baroness Noakes: My Lords, the Minister said that he accepts the recommendation that there should be a clean sheet and a new organisation. That new organisation will need new staff and—God forbid—new computer systems and all that goes with that. At the same time, there is what the Minister referred to as the "residuary body". He makes it sound as if it is a diminishing body but given the continuing problems—the backlog of payments, the unsettled cases—it will be no smaller than the current CSA, and possibly even bigger, to sort out the problems. So we have something at least as big as the existing CSA and something else. What estimates have the Government made of the cost? They must have made some estimates or they could not have accepted Sir David Henshaw's recommendation. Will the Minister put that in the context of the 5 per cent efficiency savings, to which his department has already committed as part of the current comprehensive spending review?

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER (Baroness Hayman) in the Chair.]
	Clause 1 [Assisting an enemy]:

Lord Thomas of Gresford: I will also speak to Amendment No. 25, notwithstanding that it is grouped with other later amendments, because it raises the same point.
	The point arose specifically in the case of Mr Kendall-Smith, a flight lieutenant in the RAF who refused to go to Iraq because of his belief that the invasion and subsequent activity in Iraq were illegal. I am not suggesting in these amendments that it is a defence for a person to prove that he believed that the,
	"action or operation referred to in subsections (1) and (2) requires the commission by him of unlawful acts or is illegal under international law",
	nor when we come to Clause 8 am I suggesting that belief is a sufficient defence. But it should be open to a defendant to argue, as Flight Lieutenant Kendall-Smith did, that he was being asked to make himself a party to the illegal act, as he saw it, of the invasion of Iraq. He may or may not be able to persuade the tribunal that his view is correct, but it should be open to a service man to make that argument as a matter of law.
	In the court martial proceedings against him, at a preliminary hearing, he was told that his belief that it was an illegal act was no defence. Subsequently, by the trial date in April this year, the Judge Advocate General said that it was not an admissible defence at all: he could not argue it. If a soldier is charged with disobeying a lawful order, he ought to be able to argue in some wider context that the whole operation he was being asked to take part in was illegal.
	This is a probing amendment because I am interested in the Government's response to the argument that I have put forward. I beg to move.

Lord Judd: I support the noble Lord, Lord Thomas of Gresford, and hope that the Minister will give very serious attention to his amendment. I, too, will be interested to hear his reply. We will come to relevant matters in the grouping that includes my own Amendment No. 24. However, I am sure that every Member of this House would agree that a service man has a duty to refuse to carry out an order that he or she believes to be unlawful. If that responsibility lies with the service man or woman, I do not understand why they should then be denied the opportunity at a subsequent legal occasion to explain the reasons for their conviction that the particular order that they were asked to obey had no legal basis. I hope that the Minister will look at this anomaly and see how it can be made more consistent.

Lord Bramall: My Lords, I agree very much with the noble Lord, Lord Kingsland, on this. This amendment is what the military would call "volunteering for the guardroom". It seems to put an unnecessary complication in the way. The thing about bringing in international law is that, on occasions, it is extremely obscure what international law is. It is open to different interpretation and produces deep issues that the ordinary soldier of fairly low rank would not be in a position to judge. It is a matter for the Attorney-General and Parliament. I should have thought that it was quite sufficient to say that a soldier must not commit an unlawful act.
	This goes back a very long way; it goes back to the Nuremberg trials, when a lot of the people whom we were fighting in those days said, "Well, I was all right because I was told to do it". Of course, it then became very clear that, even if you were told to do something, if that act was unlawful, it did not necessarily mean that you were free from blame. That is how this came about. But if it is made clear that you must not commit an unlawful act, there is no need to bring in the complication of international law, which obscures the issue.

Lord Garden: While I am generally sympathetic to the noble Earl's approach to this question and to having consistency of offences, we have to think about the onus his new clause, which would include the failure to suppress looting, would put on particular service men to identify that the process going on was covered by Clause 5—that people who were subject to service law were conducting the looting. As an example of the difficulty they might be placed in, I quote the comments of the former Defence Secretary, Mr Hoon:
	"The hon. Gentleman referred to looting, and I know that right hon. and hon. Members will be concerned about that issue; indeed, I have sought to identify the extent of it—
	he was talking about Iraq, during that operation—
	"Fortunately, it appears so far to be confined to Iraqi citizens—shall I use the word—'liberating' those items that are in the charge of the regime by entering its former facilities and the secret organisations, and redistributing that wealth among the Iraqi people"—
	this is Mr Hoon, the Defence Secretary, speaking—
	"I regard such behaviour as good practice, perhaps, but that is not to say that we should not guard against more widespread civil disturbances".—[Official Report, Commons, 7/4/03; col. 24.]
	Your Lordships now know, with the benefit of hindsight, that that looting period in Iraq led to the chaos and anarchy that have developed since. It seems hard that we are putting the onus for making difficult decisions about looting on junior servicemen when our Defence Secretary seems unable to come to the right conclusion.

Baroness Harris of Richmond: My Lords, I, too, thank the Minister for introducing the order. It is impossible to have a detailed discussion about the merits of proscribing these four groups to assess whether it is right to proscribe them. Of necessity, the Government must work on the accuracy of the intelligence that they receive. It is difficult for those of us who are out of the loop, so to speak, to make meaningful comment about the individual organisations.
	Notwithstanding what the Minister told us about the order, we can ask what the organisations have been up to in this country. Have other European Union member states, for example, imposed proscriptions on them? For that matter, have any other Government asked us to proscribe them? Clearly, if there has been evidence of any of the organisations being involved in terrorist activity on the ground, we will support the Government. But with this order, we enter into the realm of glorification of terrorism, with the two organisations Al-Ghurabaa and the Saved Sect. It would be interesting to know the Government's reasons for proscribing them, although the Minister has given some explanation.
	I have been unable to find out much on either organisation, so we must trust the Government's deeper knowledge of them at this stage. It is very difficult, however, to keep track of the plethora of organisations, which seem to spring up daily. Is the Minister satisfied that all the organisations in this country that appear to have links to terrorism are being monitored? The converse of that—are the Government also testing the appropriateness of organisations on the proscribed list? Will they, for instance, on humanitarian grounds, look again at the proscription of the People's Mujaheddin of Iran, the PMOI, whose leaders and supporters worldwide are seeking democratic government in Iran? For example, among many state-initiated atrocities, Iran has apparently persuaded the Prime Minister of Iraq, Mr Nouri al-Maliki, to end the presence of the PMOI—who are protected persons under the fourth Geneva Convention and so entitled to political asylum—in the northern Iraq camp Ashraf City. Iraq, on Iran's instigation, has cut off food and water for the many women and children living there. Do the Government feel that it is time to look again at the proscription of the PMOI? I simply ask the question.
	Of course, it is of the utmost importance that we protect our citizens from the very real and present danger of terrorism, but we must use the considerable powers that the Government now have as carefully as possible. There are apparently many connected parts to the proscribed organisations, and perhaps one way of disrupting their activities would be to do what we do so well in Northern Ireland—seize their assets in this country, shut down their websites, as the noble Baroness, Lady Anelay, has suggested, and prosecute for incitement. Those are all lesser, yet firm, acts than acts of proscription, which should apply only to the most serious terrorist organisations.
	I will end by quoting my honourable friend the Member for Somerton and Frome speaking in another place:
	"We must be careful not to assume, simply because we do not like—and may abhor—an organisation, that we, as a state, should stop it being able to undertake its functions in this country. We should always, when possible, use the normal criminal law to ensure that people are charged with proper offences in court and that, if they are found guilty, they pay the appropriate penalty".—[Official Report, Commons, 20/7/06; col. 503.]

Lord Slynn of Hadley: My Lords, none of your Lordships would wish to challenge the fact that it is the duty of Governments to protect their citizens from terrorist activities. I neither challenge that nor wish to say anything about the four organisations listed, because the Secretary of State, his department and his Ministers have a knowledge of the facts that I, at any rate, and I suspect most of your Lordships do not share. However, as the Minister indicated, it is important to make a careful investigation when a body is proscribed, because of the serious effect on not only the activity of its members and supporters, but on those interested in its political activities.
	It is most important that, from time to time, there should be a serious review of the activities of that body to see whether proscription continues to be justified. All parties in the House have accepted that as a proposition. Unless that is done, there is a serious risk not only of injustice to individuals, but that there will be abuse of the freedom of speech and the freedom to ventilate political opinion. I therefore hope that the Minister will reiterate that the Government accept the importance of this kind of review.
	As the noble Lord, Lord Waddington, said, this is not the right occasion to ask the Minister to give a ruling on a specific organisation such as the PMOI—although the noble Lord has given very strong grounds indicating what the Minister's answer should be. I wish to adopt a lower key, and a lesser demand, although I share the views of the noble Lord, Lord Waddington.
	It is essential that this review should be carried out in depth and seriously. When one body on the proscribed list was said by the Foreign Secretary at the time of proscription to have never committed any terrorist offences in the United Kingdom; when, after many months of deep interrogation and inquiry by the American security authorities of PMOI members in the Ashraf camp in Iraq, there was no evidence of terrorist activities; when a raid by the French police on the headquarters of a body which, according to the press, produced nothing that could indicate any kind of terrorist activity, and when the umbrella body of that organisation is not listed as a proscribed organisation, surely the Government are under a clear and powerful duty to investigate and to be really satisfied that this proscription continues to be justified. If it is not justified, then serious injustice may be done and there may be a restriction on freedom of speech and on democracy that we in this country should not seek to establish a record for upholding.
	I therefore urge the Minister to consider accepting—even if she cannot give us an indication tonight, although I hope that she will—that the Government need seriously, carefully, fairly and openly to consider the position of the PMOI, not as one of a group of 10, 15 or 20 organisations, but as an independent body whose record over the past few years can be investigated in great depth. If she does so, then I suggest, with great respect, that the answer may well be the one expected by the noble Lord, Lord Waddington, and the noble Baroness, Lady Harris. They accepted that she was not expected to give the answer tonight, but thought that it would be a good idea for her to give it pretty soon.

Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have supported this order, in particular the noble Baroness, Lady Anelay, who has given such trenchant support to the orders and the necessity for them. I hope that I will be able to provide comfort to other noble Lords, too.
	I can give the assurance sought by the noble and learned Lord, Lord Slynn of Hadley, on how we review such organisations. We keep under review a large number of organisations, although I cannot comment on specific details about them. However, I hope that your Lordships will be reassured to know that that is done by the proscription working group which brings together officials from the Security Service, the police, No. 10 Downing Street, the Foreign Office and the Home Office. If it was assessed that an organisation no longer met the criteria for proscription, then it would be considered for de-proscription.
	A number of noble Lords including the noble Baroness, Lady Harris, the noble Lords, Lord Russell-Johnston and Lord Waddington, and the noble and learned Lord, Lord Slynn of Hadley, specifically mentioned the PMOI. The noble Lord, Lord Waddington, is correct in saying that an application regarding that organisation is currently before the Home Secretary. It would therefore be wholly improper for me to say anything at all about it. However, I can assure noble Lords that what has been said in this Chamber will be noted. It will be brought to the attention of those who have to consider these matters and I am sure that it will have some effect. I cannot say what the effect will be, of course, but I can assure your Lordships that it will be considered appropriately.
	I turn to the specific questions on internet service providers. As noble Lords will know, proscription means that it is a criminal offence to be a member of a proscribed organisation, or to distribute or circulate a terrorist publication to provide a service that enables others to obtain, read, listen to or look at such a publication, or to transmit electronically such a publication. We have therefore worked very hard with ISPs to look at that issue. For instance, we understand that the Al-Ghurabaa website was hosted in the United Kingdom and that the Saved Sect was hosted overseas. The company hosting the Al-Ghurabaa website has withdrawn its services. We are working with the police to consider possible enforcement actions, including the use of notices issued under Section 3 of the Terrorism Act 2006, which requires the removal of offending material from the internet. We know from experience in other areas such as child pornography that it is more difficult to deal with websites based overseas. The only way to tackle the issue is through international collaboration in the fight against terrorism, in which we are actively engaged. I can therefore assure the noble Baroness that we will take all appropriate action to deal with it.
	Proscription means that the police can apply to a magistrates' court for the forfeiture of an organisation's assets. If appropriate, that can certainly be done.
	The noble and learned Lord, Lord Lloyd, asked whether two of the organisations could have been proscribed under previous provisions as opposed to those involving glorification. It would have been very difficult under the old regime to so proscribe them. The specific nature of their activities does, however, fall squarely within the new glorification provision. There is therefore no ambiguity or difficulty in the current legislation. I think that it is arguable whether that would have been appropriate, or possible, under the old legislation.
	I cannot give noble Lords specific details on the position regarding membership in the United Kingdom of those organisations. As noble Lords will know, however, it is not simply a matter of organisations that operate here or have a membership here. Their membership in other areas can have an effect here, and they fall within that remit.
	On each of the four groups I hope that I have been able to assure noble Lords that appropriate steps have already been taken, and that they can be taken in reviewing those already proscribed and those that will be proscribed by this order. These are important matters. I agree that the consequences of proscription can be profound and far reaching. We therefore have to be most judicious in assessing who should or should not be on the list and when, and if it is possible, to remove those who may have properly been proscribed at one stage but no longer merit such proscription. It is an ongoing issue. A constant review, as opposed to simply a one-time review, is critical, as we must continue to assess the propriety of the continued proscription of each of the organisations.
	I hope that I have assured noble Lords sufficiently to enable me to commend the order to the House without further ado.

Lord Craig of Radley: I shall speak also to Amendments Nos. 22 and 23. Mutiny is a most serious offence and, happily, of very rare occurrence. Rightly, if someone subject to service law were convicted of mutiny and sentenced to imprisonment, it could be for life. With such a punishment, it seems to me that the wording of Clause 6 should be in language which is crystal clear and which defines mutiny. Tomorrow's serviceman—even one today—can access via the internet the wording of any recent Act or Bill. I have Clause 6 on my PDA, and you can now get a PDA for a relatively modest sum. So it seems to me that this Committee should be most careful about the clarity of the wording and definitions of major offences in the Bill.
	My Amendment No. 19 is probing, and possibly prodding. The word "mutiny" does not appear in the text of Clause 6—only in the side heading and the centre heading above it at line 11. According to my staff college training in service writing, which I assume had its basis in legal practice, it was wrong to rely on the words of a side or centre heading, and my directing staff would have red-inked it as a mistake if I had done that. In the whole of Clause 6, the word "mutiny" appears in the side heading only. It appears twice in lines 31 and 34 in the following clause, Clause 7, so it seems reasonable to expect Clause 6 to be very clear in its references to, and definitions of, mutinous behaviour.
	I noted a difference of approach in the way that some of the clauses in this part have been drafted. Some start, as does Clause 6, with the generality:
	"A person subject to service law commits an offence if".
	Others—for example, Clauses 8 and 9—state explicitly that a person subject to service law commits an offence if he "deserts" or if he is,
	"intentionally or negligently absent without leave".
	These offences, particularly desertion, are serious, and it is right to make plain what the defences are and to define them.
	My Amendment No. 19 to Clause 6 is an attempt to emulate the approach of Clauses 8 and 9, so it starts with the words:
	"Mutiny by a person subject to service law is an offence".
	It is not clear to me whether Clause 6 is drafted to catch a person subject to service law with a charge such as disobeying authority so as to subvert discipline, which does not have the word "mutiny" in the charge. If so, I do not like it. I attempt in my amendment to make it clear that mutiny is an offence for a person subject to service law; the amendment brigades as definition the four types of mutinous behaviour given in the present Clause 6 into one subsection.
	The Marshalled List does not repeat exactly the amendment that I tabled, which was reflected in HL Bill 113(n) and in the Keeling version, which the Minister sent to many of us. The word "or" is now missing from the end of both paragraphs (a) and (b). My intention was to make an offence of the behaviour set out in any one of the four paragraphs that define mutinous behaviour. I now understand that it is not necessary to repeat the word "or" to make it clear that the behaviour set out in any one of the four paragraphs would be deemed to be mutinous behaviour, so I am content with the absence of the word "or".
	Amendment No. 22 simply follows my approach of clarity. In Amendment No. 23 I seek an explanation from the Minister as to why the Bill distinguishes between an agreement with at least one other person to mutinous behaviour, as in Clause 6(1), and acting in concert with at least one other person to overthrow or to disobey authority, as in Clause 6(2).
	Clause 7(1)(a) refers to mutiny occurring or "intended". I do not follow why the different definitions of mutinous behaviour have to be separated so that only the latter group—that is, in Clause 6(2)—is caught by the definition of mutiny. Anyone failing to take steps to suppress or prevent mutiny ought to be culpable. As I could not understand the distinction drawn by Clause 7(2), I adopted the approach in my Amendment No. 19 of brigading the four mutinous behaviour definitions into one subsection, deleting Clause 7(2) as a consequence. I look forward to the Minister's elucidation. I beg to move.

Lord Astor of Hever: The noble and gallant Lord Craig has raised an interesting point on the drafting of Clause 6. As he said, the matter is one of form rather than substance. It is strange that the word "mutiny" does not appear in the opening line of the first subsection, whereas "deserts" appears in the opening line of Clause 8, which deals with desertion. Although I accept that Amendments Nos. 20 and 21 are probing amendments, they raise a different issue and, unlike the other amendments in this group, propose substantive change to the offence of mutiny. By removing references to resisting authority, the amendment would restrict the scope of the offence to actions done with intent to overthrow authority. That would dilute the definition of mutiny, which we believe should be worded as strongly as possible. Resisting authority in a military context can be just as damaging as overthrowing authority. Although I suspect that this offence will be used very infrequently, we submit that this wording should remain in the Bill to serve as an absolute safeguard to military authority.

Lord Thomas of Gresford: I do not know whether these provisions have been lifted entirely out of the Army Act 1955 or are a new construct, but it is interesting to look at the way in which Clause 6 is framed. Not only does it not mention mutiny, but the first two offences are that the person,
	"agrees with at least one other person subject to service law to overthrow or resist authority",
	or,
	"he agrees ... to disobey authority".
	Essentially, those are conspiracy charges. They relate to an agreement between two people to commit an offence, and the offence that they are contemplating is straightforwardly mutiny.
	When one looks at subsection (2), one sees that a person subject to service law commits an offence if,
	"in concert with at least one other person subject to service law, he ... acts with the intention of overthrowing or resisting authority; or ... disobeys authority".
	Those are actions. Subsection (1) is about agreement—that is, a conspiracy to do something in the future—whereas subsection (2) is about actually doing it. A proper way of approaching this might be to follow the amendment tabled by the noble and gallant Lord, Lord Craig of Radley. We could say what mutiny is—and how a person can be guilty of it—by incorporating paragraphs (c) and (d) of his amendment and then, by adding a subsection (3), we could deal with the question of conspiracy to mutiny. That is not actually required, because conspiracy to do an unlawful act is an offence anyway, but it might make it clear if that were included.
	If one looks at Clause 7, one can see how inconsistent it is. It uses the word "mutiny". It states:
	"A person subject to service law commits an offence if ... he knows that a mutiny is occurring"—
	something that is active—
	"or is intended"—
	something that goes to the future—
	"and ... he fails to take such steps as he could reasonably be expected to take to prevent or suppress it".
	Of course, the failure to suppress a mutiny is confined to the acting and not to the conspiracy, whereas one would have thought that it is as important to quash a conspiracy as it is to quash the act of mutiny when it is occurring.
	These are very serious offences punishable by life. I suggest to Members of the Committee that those drafting the two clauses should look again at them very carefully, bearing in mind everything that the noble and gallant Lord, Lord Craig of Radley, has said. Central to the drafting of those clauses should be a firm definition of mutiny. There should be no confusion between an agreement to do something in the future and actually doing it. If the Government desire to draw a distinction between the two in suppressing mutiny, they should make that very clear. I do not suppose that that is their intention, which brings me back to where I started—I suspect that this provision may have been lifted wholesale from the current legislation.

Lord Judd: In moving Amendment No. 24, I will be particularly interested in the debate on Amendment No. 25, in the name of the noble Lord, Lord Thomas of Gresford, which in some ways is related to the same ground. I indicated my concerns about the matters covered in this amendment at Second Reading. The Minister, who has been most responsive and helpful in taking up points made at Second Reading and elsewhere, did not at that stage apparently feel able to comment on this point. It will therefore provide an opportunity for him to say a bit about the matters under consideration.
	Having served in the Armed Forces, albeit a long time ago, and been a Defence Minister, I am well aware of the gravity of desertion. It is a very serious offence, which can place lives in jeopardy and undermine an operation. Particularly in these days of highly developed technology, the absence of a key person at a particular time could be of critical significance. I have no argument whatever about spelling out the gravity of the offence of desertion in the Bill. I believe that if one recognises the gravity of desertion, it is therefore important to have severe penalties. We can argue about what those penalties should be when we have an opportunity to look at that a little later in our deliberations, but there should be a severe penalty.
	My amendment simply proposes that, if the offence is grave and the punishment severe, it should be clear beyond doubt that whatever the service man or woman is being asked to do is proper and lawful. I suspect that my noble friend will say, "What on earth is the point in putting in the word 'legal' because, by definition, anything that a serviceman will be asked to do by our Government would be legal?". Of course, that argument can be turned on its head: if anything that anyone may be asked to do is obviously legal, it would be quite harmless to put the word "legal" in the text just to underline the point.
	We live in an age of volunteer services. People join the services of volition. Once they have done so, they have agreed by definition to do anything required of them by the Government. It is therefore more important than ever to underline the significance which we, in making the law, attribute to this form of service and that we are absolutely determined that no one providing this form of service should be put in any kind of difficulty or legal risk.
	We heard earlier of the importance and significance of the Attorney-General. It has been argued that once the Attorney-General has given his advice to the Government, we all gather round and endeavour to make a success of the Government's decision to undertake an operation, if that is their decision in the light of what the Attorney-General has said. Of course there is a difficulty here because the only people who know what the Attorney-General said are the Government, and they decide whether we are going to go into action. Members of this House do not know, the other place does not know, servicemen do not know and the general public does not know. It is therefore important to underline the significance of what is being done and to ensure that in the preparations for action, the seriousness of the legal provision is right at the top of the agenda. It would be quite wrong ever again to be placed in a situation—I do not suggest that this is a fair analysis, but it has been much discussed—where a Government undertaking a serious military operation appear to grapple to find a legal justification for doing so because so many questions are being asked about the legality of the plans. That is a most unsatisfactory situation and I believe it put service men at all levels under a good deal of pressure. Many of them were concerned. I do not remember a time when there was so much concern in the services about the doubts, and of course I am referring to the action in Iraq.
	However, times have moved on and no one could argue that anything the Armed Forces are being asked to do now is in any way beyond the law. That is because, for example, the United Nations Security Council has quite specifically endorsed the action being taken at this point. But there were arguments at an earlier stage.
	For all those reasons, and because of recent experience, this is a good opportunity to underline for all to see that in preparing for military action, legality is of the utmost importance, and that it is put into the Bill. I was startled when I read Clause 8 because it seems that actions or operations against an enemy are fairly clear cut: operations outside the British Isles for the protection of life and property are utterly commendable; but then, suddenly and baldly, with no qualification and no detailed explanation, are the words,
	"military occupation of a foreign country or territory".
	If desertion is grave and the penalties are to be severe, we owe it to our service men to underline that, in this context as well as any other, anything they are asked to do will be beyond any doubt lawful and legal. I beg to move.

Viscount Slim: I am sorry that the noble and gallant Lord, Lord Bramall, is not in his place. When I was a very junior officer serving abroad, I was sent to a certain minor unit because there had been some desertions and it was feared that there would be a mutiny. I am not a legal man clever enough to make the law, but what I can say is that you should not pussyfoot about with the two words "mutiny" and "desertion". You should not funk coming clean in what you write. The noble Lord, Lord Thomas, was absolutely right and put it more diplomatically than I could when he suggested that you had better face up to it and not be frightened of writing it down. Through his amendment the noble Lord is seeking to put this in the Bill.
	I would ask the Minister to take some further advice. These are frightening words and advisers sometimes funk them. The noble Lord, Lord Judd, was right to say that these are terrible words. He was once a defence Minister and he understands how important they are. I do not know whether it is right to put in the word "legal", but even if a war is illegal in the eyes of some, it is still no excuse for a unit to desert or mutiny. This is an area where I would again urge the Minister to seek advice. I am not saying that he has had weak advice, but I get the impression that people who advise get a bit frightened when the words "mutiny" and "desertion" are used. You do not pussyfoot around with mutiny or desertion in the military.

Lord Craig of Radley: I rise to speak to my Amendment No. 27. I find Clause 8 tortuous, with its reliance on the phrase "relevant service" used repetitiously and with a series of questionable definitions being used for it. The wording of the clause may be clear enough to the legally trained mind, but will not be clear to the average soldier, sailor or airman. The wording of my Amendment No. 27 is lifted almost verbatim from the Armed Forces Act 1971, which itself revised the wordings in the Army and Air Force legislation in 1955 and the Naval Discipline Act 1957. The current definition of desertion would be retained by my amendment.
	The Minister should explain to the Committee why it was thought necessary in this new Bill to introduce such a complex reworking of the offence and definitions of desertion. Some particular points of detail occurred to me. The 1971 Act refers to being "permanently absent from duty", rather than as in Clause 8 remaining "permanently absent without leave". The separate offence of absence without leave is covered in Clause 9. Does that not invite some confusion between the two offences of desertion and AWOL to bring absence without leave into Clause 8 rather than absence from duty? The 1971 Act and my amendment sticks to the simpler to understand rationale of,
	"intent to avoid serving at any place overseas",
	rather than the more obscure phrase "outside the British Islands". There is no definition in Clause 367 of British Islands, although I understand that there is one elsewhere in statute.
	Then there are the somewhat surprising mentions of the protection of life or property and,
	"occupation of a foreign country or territory".
	That starts to beg the question of whose life and what property. Would we really want to charge a person with desertion when the value of the overseas property to Her Majesty's Government may not be that clear to him?
	Does "occupation" cover everything from the result of a large-scale successful invasion to a few servicemen being attached to a unit of the country or territory at the relevant authority's request? I get the feeling that the draftsmen are trying to provide a wider set of possible offences of desertion than heretofore. The Committee should not give any ground to widening the possible misbehaviour for which someone could be charged with desertion. The Committee should resist that or at least seek a very convincing explanation from the Minister.
	This is meant to be a probing amendment to help the Committee to understand the reasons behind the present tortuous drafting for this very serious offence. The only other point to which I should wish to draw the Committee's attention is that, in my amendment, I have sought to restrict the possible life sentence to,
	"service or any particular service when before the enemy".
	I question whether a sentence of life imprisonment would be appropriate if the person was on operations for the protection of property, for example. Surely the key issue is whether the person fails to support or lets down his colleagues when they are on operations against the enemy rather than the role of the particular operation. While seeking to spell out a number of possible operational tasks—for example, the protection of life or property—another task, in which the person's contribution may be vital to the safety of a colleague, might not be covered.
	Incidentally, the definition of property in Clause 367, at the bottom of page 185, may again be clear to the legal mind but is not clear to me. Would it include mobile homes or temporary structures? Are vehicles included as property? I recall some tortuous restrictions in the Armed Forces Act 2001 affecting the activities of service police in relation to property. For example, it restricted them to,
	"If a person is in a garden or yard occupied with and used for the purposes of a dwelling or of any service living accommodation"—
	and then there were the restrictions on what he could do.
	Apart from legal niceties, what is the practical distinction between heritable property and real property? The former seems to apply only in Scotland, which is not—or at least not yet—a foreign country. I doubt whether the potential deserter would have a clue. It may be claimed that the manual of service law will deal with such questions, but this is not a good enough excuse for having any clause in the Bill such as the present Clause 8, that is so tortuous and opaque beyond reason.

Lord Mayhew of Twysden: It is difficult not to be repetitious in dealing with this group of amendments, which goes to the question of whether a service man can question the legality of the war or of an operation in which he is asked to take part. I probably shall not avoid that difficulty, but I believe that the noble Lord, Lord Thomas of Gresford, is wrong to think that it is impossible to determine the advice of the Attorney-General.
	It is an important constitutional principle that the advice which the Attorney-General gives in so many words to the Government is not to be made public, but of course he is answerable to Parliament. He is brought before Parliament and he has to explain in what respects he considers that the action of the Government is lawful. Unless he is able to do that, the Government will fall. We remember the most recent instance of this, when the Attorney-General came before Parliament and explained the basis upon which he considered that the actions of the Government were lawful. It is not the case that everybody has to accept the opinion of the Attorney-General and nobody can find out what it is.
	I invite the noble and gallant Lord, Lord Craig, to consider what his amendment means by the words,
	"thereafter forms the likely intention".
	I am not sure what a likely intention is. He might like to reflect on that because it brings into question who has the burden of proof and of what. I should be grateful if that could be explored.

Lord Drayson: Clause 8 creates the offence of desertion. I think the most helpful thing I can do is deal with all the amendments together, apart from Amendment No. 25, which we have debated already this evening.
	Under the Bill, the offence of desertion is limited to where a member of the services goes absent without permission, either intending never to return or to avoid the especially dangerous and important service abroad that the Bill refers to as "relevant service". That term covers the same broad type of dangerous service abroad which is called "active service" in the existing legislation. Like active service, relevant service covers operations against an enemy, operations abroad for the protection of life or property, and military occupation of a foreign country. Amendment No. 24 seeks to alter the definition of "relevant service" in respect of military occupation to "legal" military occupation of a foreign country or territory. The effect would be that it would no longer be considered desertion to go absent without leave to avoid service in military occupation of a foreign country, unless that occupation was "legal". The problem with this is that "legal" here refers to an obligation under international law, which applies to whether the action of the United Kingdom as a country is lawful. International law looks here at Governments and states. It does not expect the ordinary service man or woman to assess whether a military occupation is sanctioned by international law.
	It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought that the operation was contrary to international law. The amendment would have the even more extraordinary effect that, if the service man who goes absent is wrong about the international law position—in other words, the court martial decides that the occupation was lawful under international law—he is guilty of desertion and subject to a maximum penalty of life imprisonment. I am grateful to my noble friend Lady Dean for so clearly underlining the difficulties here.
	Noble Lords will no doubt be aware that the Joint Committee on Human Rights, in its report published last Friday, has raised the question of why Clause 8 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 8. I will of course write to the committee to provide a detailed answer to its questions, but I hope that my reply to these amendments and earlier to Amendment No. 25 has outlined our reasons for deciding that such a defence should not be available.
	Amendment No. 26 would reduce the maximum imprisonment for this offence from life to 10 years. In Clause 8, we have sought to modernise and limit the offence of desertion. One of the changes that we are making is to remove the current maximum penalty of life imprisonment for all cases of desertion. This maximum was only applied to all desertion cases by the Armed Forces Act 1971. The Bill restores a distinction between offences of desertion carrying a maximum of life imprisonment and those carrying a maximum of two years. Under the Bill, the maximum of life imprisonment will be limited to desertion that takes place in the context of "relevant service". That term covers the same broad type of dangerous service abroad which is called active service in the existing legislation. Importantly, it is the sort of service in which all involved need to be able to rely completely on everyone else, a reliance which must be undermined where a member of the service leaves his colleagues without permission.
	It is also the sort of service in which the success of an operation can depend on every member of the force involved. To drop your mates in it when they need you most by deserting in the face of dangerous operations is viewed in the forces as just about the worst thing that you can do. In such circumstances, a maximum sentence of life imprisonment may be appropriate in an extreme case and should be available as a maximum for the court martial. I trust that Members of the Committee see the requirement for retaining the sentence of life imprisonment in the limited circumstances in which it will continue to be available, and why I therefore cannot support these amendments.
	Amendment No. 27 seeks to replace the existing clause with a definition closely based on the existing legislation. In some areas the difference is crucial. The Bill limits desertion to absence without leave with the intention never to return to service, and absence without leave to avoid what can broadly be called active service. Amendment No. 27 would mean that it was also desertion to go absent without leave to avoid any service overseas—for example, training in Canada. If a soldier were due to go to Germany for a training exercise but went absent because of some temporary trouble at home, he would be guilty of desertion rather than merely absence without leave. That would be too harsh. The Bill represents a carefully thought out modernisation of the definition of the offence, which reflects what the services need.
	Notwithstanding these difficulties, I accept that the wording of the clause takes more than one reading to be clear to the layman. We would never expect service personnel to rely solely on reading the Act. As now, there will be specially drafted guidance in the manual of service law so that, in particular, those affected know what the offence is. I am glad to tell the noble and gallant Lord that the manual will also be available on the internet, and service personnel will readily have access to it.
	I hope that the noble Lord accepts my explanation on the requirement to retain the clause as drafted, and feels able to withdraw his amendment. I hope too that, in the light of my explanations, Members of the Committee will not press their amendments.

Lord Judd: I am grateful to all noble Lords who participated in this interesting debate. Given the observations made, the drafting of Clause 8 leaves something to be desired, and it would be helpful if my noble friend could agree to think about some of the things said and about how the clause could better meet the anxieties expressed.
	I have not put my name to the amendment tabled by the noble Lord, Lord Thomas of Gresford, and I was not consulted on it, but an interesting point has been made. If the law states that a service man or woman has a duty to refuse to carry out an unlawful order—and that is how I understand the law—something is missing if subsequently that service man finds himself subject to legal proceedings and cannot even argue that he believed he was doing what was required of him if the order had indeed been unlawful. The amendment is not asking the court martial to rule on the legality of the war; it is asking it to listen to the service man's case for what he decided to do.
	I have unlimited respect for so much that my noble friend Lady Dean has done in public life, not least the tremendous amount of work that she has done for the armed services, ensuring good conditions and the rest. She has a proud record of service. However, I put it to her that providing a simple reassurance in the Bill for those considering undertaking service that anything that they are required to do is legal will strengthen morale and strengthen discipline, because it will be explicit—not implicit—that what they are required to do is legal. That is important.
	The other consideration is that this and an earlier debate revealed a strange dichotomy. We are prepared to consider the position of a service man, in the context of a court martial, who has refused to undertake a specific order because he believes that that order was unlawful.
	I turn to action that in itself may not be open to challenge in that way but which occurs in the context of a broader situation in which the whole operation in which the person is taking place is open to question. There is absolutely no opportunity to put that forward as a defence. It seems that there is a problem in this area—our debate has illustrated that there is—and it is terribly important that we all think about how it can be resolved.
	The Minister argues well and very convincingly at the Dispatch Box, and I am glad to have him as a noble friend in that regard, but he said one thing that troubled me and which needs more thought. He seemed to imply that although we were committed to the international rule of law, there might be situations in which we knew that the international rule of law could not endorse what we were doing—but that by some subjective interpretation of the law it was okay. This is a very big issue. I do not believe that the rather casual drafting of Clause 8 begins to face up to some of the profound issues that are involved. The issue needs a lot more attention. I have listened to the Minister, who does argue well, and I want to go away and think about this debate. I hope that he will feel able to go away and think about some of the big issues that have been raised here and not just shut the door. If there is a mutual position of reflection, I am happy to withdraw my amendment at this juncture.

Lord Drayson: I shall speak also to Amendments Nos. 29, 30, 50, 51, 54, 55, 56, 57, 69, 87 and 88. These are government amendments to Clauses 9, 24, 31, 33 and 58. I hope that I am able to deal with the amendments to Clauses 9, 24, 31 and 33 pretty briefly; that is, all the amendments I have referred to except Amendment No. 69, which I will come back to in a moment. I have recently written to noble Lords to explain these amendments in more detail, but I can confirm that they are intended only to simplify the clauses without making any changes to their substantive effect. In the circumstances I urge noble Lords to accept them.
	On Amendment No. 69, Clause 58 imposes a six-month time limit in which to prosecute civilians who cease to be subject to service law. Subsections (5) and (6) of Clause 58 create an exception to this. Some civilians are subject to service discipline by virtue of the fact that they reside or work in a particular geographical area. The exception is necessary to ensure that the six-month time limit does not begin to run simply because the civilian temporarily leaves the geographical area in which he or she resides.
	However, civilians can become subject to service discipline for reasons other than the fact that they live or work in a particular geographical area. The amendment is necessary to ensure that this exception applies to all civilians who are subject to service discipline but who may temporarily cease to be so subject. I urge noble Lords to accept the amendment.

Lord Garden: I support my noble friend. While he was not available, I objected to the groupings on Friday because they were so disparate. The only common feature seemed to be that they all had a "g" in front of them, but the groupings made for rather odd debates. As we look forward to continual long nights in this Committee stage, it would help the debate if we could try to keep the subject of groupings reasonably consistent.